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Monthly Archives: July 2013

In the last two entries, appropriately named Parts I and II, we explored several important ideas, including: (i) the idea that the things we hold most dear often do not come with a price tag; (ii) the conclusion that both the compensatory and deterrence aspects of tort law require that we compensate the loss of priceless things, both to make the victim whole and to deter future misconduct so as to protect all of us; (iii) the recognition that in our work-life we often place a dollar value on one of the most priceless things of all: time; (iv) the notion that by thinking of non-economic damages, such as loss of life, peace of mind, pain and suffering, diminished quality and joy of life, as a job, we can “monetize” priceless losses. We must recognize that some losses, some grief, is so intense that even to regard it as a “job” is painful and seems to lack sufficient dignity for the loss. The loss of a loved one for whom we would give our lives, for instance, is literally a “job” where no wage would ever be sufficient. We will conclude this section with ways to think about grief and loss.

This analysis of valuing priceless things is important because, when members of our society are injured (sometimes we, ourselves), jurors (sometimes we, ourselves) are asked to place value on losses that are difficult to value. Juries are routinely asked to award money as compensation for both economic and non-economic losses. The former, we remember, are things like medical bills, lost wages, damage to property, while the latter are things like pain, disability, suffering, damage to parent-child and marital relationships, disfigurement, and loss of joy of life, and the loss of life, itself.

In this third entry, I would like to invite you to review Parts I and II and reflect on some of the practical implications of this idea of “monetizing non-economic losses,” that is, changing “priceless” losses into dollar awards. I would like to start this process by remembering that even economic losses, such a lost wages, have an important non-economic component. Jobs, although we get paid for our time, also give us other satisfactions, particularly if they are good jobs.

It helps in our reflections on this subject to keep in mind that injured individuals seldom, if ever, are glad that they had the injury for which compensation is sought. I have never met an injured individual who felt that being unable to work, feeling less than the person they had been before, being disfigured, disabled, or in pain, was a good way to make money. We are left with financial compensation for losses, not because these are what injured people want, but because we are limited to such remedies as part of the human condition. (We cannot, for instance, go back in time and avoid injury – as earnestly as most injured and disabled people may pray for such a remedy.) As we have noted, personal injury plaintiffs (those seeking compensation from the allegedly negligent defendant) have been unwillingly, recklessly, or negligently been placed in this position not as a matter of their own choice.

Sometimes insurance companies make much of the idea of “secondary gain” – that is, the notion that the injured person gets something out of their injury or disability and, therefore, is not only not motivated to recover, but gains by prolonging and exaggerating their disability. It is always more important to think first of the primary loss before concerning ourselves with the possibility of secondary gain. For example, being disabled means that you can no longer work. Is this a good thing? While most of us in thoughtless moments may entertain the notion that not having to work is a positive thing, the truth for most is that work is not only about money; being sidelined from work is not an unalloyed “blessing.” Is injury that prevents us from working a “secondary gain?” Almost never. Work is not only pay, but also about the satisfaction of making one’s way in the world, being an “adult,” about productive labor, about social interactions with our co-workers, colleagues, supervisors, and others, about contributing to one’s household, community and nation, and filling one’s day and life with meaning. A good day’s work, followed by time with co-workers, friends, neighbors, and family, some rest and recreation is, well, a very good day indeed. No one who experiences the worry of losing their job or the disorientation of being unable to work fails to recognize that work is one of the main organizing principles of our lives. The key to successful retirement is often said to be “keeping busy” and “having things of interest” with which to occupy one’s time. One has to plan for retirement. Yet, an injured person may lose this organizing principle of life against his or her wishes and without the benefit of any planning. This primary loss overwhelms the slim benefits of any secondary gain.

So, let’s remember that treating pain and disability as a job for the purposes of valuing time requires that we recognize it as a truly rotten job: one forced upon us, lacking in benefits, lacking in pay, vacation, or time off, lacking in social interactions or sense of satisfaction, and disruptive of every other aspect of our life. Although treating pain as a job helps us value time, it is sometimes unfair to treat all losses as a job. Further, let’s keep in mind that even the loss of a job, which may seem to be an economic damage (i.e. loss of salary) also has non-economic components. Jobs, after all, are not only about money.

Dealing with the shock and trauma of injury, disability or death, particularly if the traumatic event involves the loss of a loved one, cannot properly be regarded as a job. We must attempt to value the very worst day in a person’s life and consider how much a person might pay to not have lived that day. No amount of pay would suffice to compensate for the grief a parent feels for loss of a child. Let us acknowledge that and explore the process of grieving together.

I would propose that such terrible losses have various levels of grief – long recognized in the traditions of grieving.

We are told in the Bible: “Jacob tore his clothes, he put sackcloth on his loins and mourned his son for many days, All his sons and daughters arose to comfort him, but he refused to be comforted. He said: No, I will go down to my son in mourning, to the grave.” (Genesis 37:34-35)

When someone is severely injured or killed, the regular rhythms of our life cease. Death comes in many forms, but the traumatic, unanticipated death, presents challenges that are distinct from those of a death that is anticipated by long illness or old age. Such losses leave the survivors to remember with deep regret that last words were hastily spoken or inadequate to express the depth of their caring for the person. Loss of life can also reflect the loss of a chance to right things that had gone awry. Unanticipated losses can also leave us feeling incomplete or that things that ought to have been said have gone unsaid. To recognize this type of pain is to recognize that it deserves compensation when such a loss is the product of the avoidable carelessness or negligence or another. Grief is an intense loss which must be honored and which, like other priceless losses, is difficult to value in dollars, difficult to monetize.

When reflecting upon the “priceless” loss of being able to say “goodbye” or “I love you” it is helpful to think about the stages of grief recognized by Jewish tradition.

Traditionally these are:

1. Aninut: the time between death and burial,
2. Shivah: the seven days following burial (shivah means “seven”),
3. Shloshim: the first thirty days after burial (shloshim means “thirty”),
4. The first year following the death,
5. Anniversaries (yahrzeit) or community remembrances (yizkor) thereafter.

These traditional stages of grieving parallel the intensity of losses we see in serious death and injury cases. In attempting to lend dignity to loss and to monetize the non-economic components of loss, we must understand the loss.

We see in serious injury five stages of loss:

1. Shock: the individual is not fully aware or accepting of the loss; normal life ceases;
2. Early recognition of loss: the individual is still numb, but tries to comprehend the extent of their injury or loss and fearfully begins to contemplate the idea that life must go on; if the person starts moving forward with rehabilitation, they may still often remain in denial and repress feelings;
3. Confronting loss and recovery: the individual moves forward with rehabilitation and begins to confront disability and limitation, feeling pain and grief that was too intense to acknowledge before; this period is often characterized by depression, despair, slow progress and setbacks, and, hopefully, a commitment to move forward;
4. Rehabilitation and planning: the individual begins to engage a new reality circumscribed by limitation and loss; social interactions are vitally important; anger may surface; a challenging period characterized by exacerbations and setbacks as slow progress in made toward returning to life activities as able; the painful recognition of the shape of the future emerges;
5. Acceptance and remembrance: the individual accepts and embraces a new reality of limitation and loss, often letting go of anger as unproductive, and, in the best cases, moving forward to a productive life appreciating the things that remain while acknowledging the things lost OR sinks into a quagmire of despair and recrimination, or a combination of the two.

When valuing injury, it is appropriate to recognize each of these stages. How was the day of the traumatic event? How does one compensate someone for the worst day of their life? In an injury case, surely, we recognize, medical bills, even when they reach into the tens of thousands of dollars, cannot suffice. The intense pain of that initial period must be separately acknowledged and valued. Each time period thereafter has a different duration and intensity and each must be valued. Recurring to our metaphor of pain and loss as a “job,” we might give a special “signing bonus” for entering into the “job of loss” during Stage 1, perhaps a multiple of the emergency room bills. Thereafter, we would give hazard pay and double time 24-7 for the intense period of Stage 2. Stage 3 would establish a new “norm” of double time for long days. Stage 4 would be a prolonged period of daily compensation at a high base rate. Stage 5 would be the rate through the duration of the disability, perhaps through the individual’s life expectancy in the case of permanent injury or disability. Each of these “chunks” of time must be valued in accordance with the evidence of the case.

Using the idea that pain, loss and disability exist over time, we recognize both duration AND intensity as components of the loss. A “Pain Graph” can readily demonstrate the difference between intense but short-lived pain and less intense but long-term pain. Such a careful analysis is important to the proper compensation required for general damages or non-economic losses.

The last entry noted that, in the absence of fixed standards by which to measure non-economic damages, jurors were left to their own devices. I suggested that there were some tools that lawyers and jurors could use to consider valuation of things such as pain, suffering, disability, disfigurement, and grief that were both principled and helpful. This entry will explore some of those tools.

We are accustomed to measuring certain things in dollars and cents. No one has any difficulty determining lost wages or medical expenses; these sorts of economic losses are customarily measured in dollars. The value of a life may be difficult to measure, but the cost of saving a life at a trauma center can be known to the penny! The last words of Queen Elizabeth I, probably apocryphal, have been reported to be: “All my possessions for just a moment of time.” This would lead us to conclude that life, even a few moments of time, are priceless.

It is my contention that both life and time are, indeed, priceless, but that they are not worthless! It is possible to place a value of such things so as to lend dignity to the loss.

A beloved pet or companion animal is worth more than its purchase price or veterinary bills. I am reminded of the plaque in front of a bench along the Seattle waterfront’s Centennial Park my wife and I noticed during our walks through the Sculpture Park that we believe to be in honor of a beloved pet, “Eddie.” (If not, we sincerely apologize to the bereaved, but there was only a single name given.) Many a loving owner willingly spends hundreds of dollars for the care of a pet rescued from the pound or, as with Eddie, in remembrance of good times past. If a villain were to kill your pet on purpose and hand over a fistful of dollars equal to the purchase price or initial vaccinations from the pet store or pound, few of us would regard that as an even trade. Beyond the money, we would find the conduct outrageous!

Few of us would regard it as an “even trade” to suffer an injury through the negligence of another and be paid the medical bills alone. Although the death of a loved one cannot be reversed, it does not follow that the wrongdoer should pay nothing as legal damages. Priceless is not worthless and tort principles of deterrence require that human life be given a value greater than the car totaled in the collision!

What we are really saying is that we are uncomfortable with placing a value on life, time, or quality of life, because it is not a marketplace in which we customarily deal. We find the idea of receiving money for the death of a loved one to demean the ineffable value of that heartfelt loss. The solution, however, is to find a principled method of calculation that lends dignity to the loss, not simply refusing the challenge of valuation by setting the value of human life, human pain, or human dignity at zero!

Michael Sandel, in his recent best seller, “What Money Can’t Buy: The Moral Limits of Free Markets,” explains that there is a robust and burgeoning marketplace for both life and time. Want to attend a Congressional hearing or a Supreme Court argument? It is common practice for some to hire professional “line standers” to wait in line for you. Time is money! Likewise, when it comes to traffic flow, commuters can (increasingly) pay tolls to use “Hot Lanes.” Here in Washington State, the use of SR 520 (Evergreen Point Floating Bridge) and Hot Lanes on SR 167 already allow drivers to pay to save time in their commute in just this way and Hot Lanes are expected to be expanded to I-405 and other freeways.

In the viatical industry, however, author-philosopher Michael J. Sandel explains that investors purchase life insurance policies from the terminally ill, providing the dying with cash for medical care and receiving the proceeds of the insurance upon death. This seems a bit ghoulish since the investor profits from the early demise of the insured, having bought the policy payout at a discount. Increasingly, Sandel notes that the democratic and democratizing ideal of “first come, first served” is yielding to “you get what you pay for!” All human beings have their allotted time and, as Queen Elizabeth I noted, all the possessions in the world cannot cheat death. (I would be remiss in failing to note that money also yields superior medical care which may be able to extend one’s time somewhat, but in the end death is a certainty for all.) Like Sandel, I am concerned that our society is equating willingness to spend one’s wealth to the highest and best use of social resources. A small child spending a day at the ballpark may be more valuable and meaningful for all then a corporation being able to buy skyboxes at the stadium which remain empty. The fact that one can save time by paying for line standers or Hot Lanes or that one can afford superior medical services or better seats in the ballpark may not be the best allocation of social resources. A wealthy person’s time with his family is not necessarily more important than the time of a struggling worker, student, or person looking for work spent with loved ones.

Juries and juries alone can recognize the importance of determining the value of lost health, time, life. I propose that, despite the unusual aspects of setting values to such things, that we do so all the time. When? Whenever we get a paycheck! We are selling our time hour by hour, week by week, year by year and declaring that the compensation we receive is “worth our time.” Commuters in Hot Lanes or choosing a toll bridge over another bridge that is untolled (but more crowded) are saying that even a few moments of time are worth a hefty toll. So, if we can measure time, we can measure life lost or shortened or a loss in quality of time!

So, this is our first tool: thinking of pain as a time-consuming job. We have all had a job that “was a pain.” I am asking you to consider what if your job was “feeling pain.” Suppose I offered to pay you minimum wage in Washington of $9.19 an hour for each hour of pain you received. Remember that this is a bad job: no time off, no benefits, bad hours, interferes with your family time, no weekends, evenings, holidays, time off, or vacations. Oh yes, and you can’t quit, although you can get some relief from the pain with injections, surgery (maybe), or pain-killers that leave you unable to focus or be your best self. Let’s say your work day is 16 hours a day. That is, you have a few good hours in the day and are not aware of pain for 4 hours at night when you are only able to enjoy a fitful sleep. Although the pain disrupts your usual 8-hour sleep, you can get about 4 hours of rest. This means that your “pain”-job is going to pay you $147.04 a day, $1029.28 a week, $53,522.56 a year. If you will experience this pain for the rest of your life, we will want to know your life expectancy and whether the pain will get worse (the job harder) as you get older. A person of twenty might have this job for sixty years, “earning over $300,000.00; a person of sixty might have this job for twenty years or more, “earning over $100,000.00.” Although there is no marketplace for pain, there is definitely a marketplace for time. The fact is that with these hours, lack of benefits, and work conditions, few people would believe that minimum wage was sufficient. It wouldn’t be worth it. Perhaps one’s time “off” – which is what pain takes away – should be valued as much as your work-time. Perhaps, time and a half, double time, hazard pay, or more would be appropriate!

Using this tool, however, lawyers and jurors can think about such things as the intensity of the pain, its disruptive impact on the rest of their life, and its duration. What should the hourly rate be? Should a person be paid time and a half or double time on holidays, evenings, weekends, and lost sleep? Is there hazard pay? What about the lost time and pleasure of carefree time with one’s friends and family? What about the lost satisfaction of a productive job that might have been lost due to the injury? No one would want this job of feeling pain. To do this sort of job, one deserves substantial compensation! Consider also that this job was not one that the injured person volunteered for: it was forced upon the injured person against his or her will as a result of the negligence of the defendant. It is a type of involuntary servitude, subjecting the only thing we have in life, time, to forced labor at the beck and call of a cruel master, pain itself.

In the next entry, we will review some other tools available to help jurors give fair value for the loss of priceless things.